Writers of Pro Football Prospectus 2008

Extra Points

The NFL has informed teams that, effective immediately, the rules of the lockout are back in place. Tonight's announcement was expected after the 8th Circuit Court of Appeals in St. Louis granted a temporary stay of the injunction that ended the lockout on Monday.

It's looking like the NFL has been counting on the 8th Circuit Court the entire time. I suspect that the 8th is going to rule in favor of the NFL 2-1 and then get smacked down by the Supreme Court 9-0. That will work for the NFL. They are just playing for time.

The thing is, the owners' legal theory is that federal labor relations laws have broad reach (i.e., NLRB jurisdiction can apply even after a union formally became not-a-union, and that the collective-bargaining exception to antitrust scrutiny should be read broadly). Traditionally, that's not the sort of thing that ideological conservatives sign on to.

The thing is, Scalia/Alito tend to make pro-business rulings even when they're contrary to what's generally thought to be their legal position (really hardcore originalist). For example, they ruled in favor of AT&T in that recent California case re: consumer protections even though the ruling required them to endorse federal laws (that didn't provide a certain class of consumer protections) overruling California laws (which would have provided that class of consumer protections).

The issue is that ruling in favor of the owners would create a situation where there is suddenly a precedent that enhances the ability of labor to negotiate in many circumstances. The NFL is unique because it is a cartel and all of a sudden the interests of the League in terms of labor laws is exactly opposite to the business community at large. Conservative judges are in a bind because ruling for businesses would mean a ruling in favor of the players.

You must get shocked a lot, as Scalia and Alito routinely rule in favor of labor over management. Just this January Scalia wrote an opinion in favor of the employee in Thompson v. North American Stainless. Alito joined in the opinion.

Only when it is stupidly obvious. How does a Circuit Court make such a bone-headed decision in the first place? Really? Retaliating against an employee's family doesn't count as retaliation? How do these morons get to be judges in the first place? Never mind. I know.

That really is one of the central themes of economics. Milton Friedman observed, not the first, that "With some notable exceptions, businessmen favor free enterprise in general but are opposed to it when it comes to themselves."
The courts can either support the free market OR they can support businessmen in restraint of the free market.

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